FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

John A. Izzo,

Complainant

against Docket #FIC 86-154

State of Connecticut Department of Revenue Services, Division of Special Revenue,

Respondent September 23, 1986

The above-captioned matter was heard as a contested case on June 27, 1986, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found:

1. The respondent is a public agency within the meaning of 1-18a(a), G.S.

2. On March 1, 1986 the complainant placed a bet, over the telephone, with the respondent's Off-Track Betting System ("OTB") at approximately 6:44 p.m. Telephone bets are accepted from persons who have a "deposit account" with the respondent's telephone deposit center. Such persons are given code words and account numbers with which they must identify themselves before placing bets, and all bets are tape recorded.

3. According to the complainant, he made the March 1, 1986 bet in error and asked to change it, whereupon he was told to call back in a few minutes. The complainant claims that he called back a few minutes later and that his bet was changed. No change in the complainant's March 1, 1986 bet was reflected in the respondent's records.

4. The respondent conducted an investigation of the complainant's claim that it failed to properly record his March 1, 1986 bet. On or about May 15, 1986 the respondent provided the complainant with a copy of the report of its investigation.

5. By letter of complaint filed with the Commission on June 3, 1986 the complainant alleged that he had been denied access to the tape recordings of his March 1, 1986 telephone calls to OTB.

Docket #FIC 86-154 Page Two

6. An investigator from the respondent's security division listened to the tapes of all five OTB employees answering telephones on March 1, 1986 from 6:44 p.m. to approximately 6:54 p.m. and found only one telephone call from the complainant. The tape recording of such call did not reflect an error by the complainant or a request that he call back.

7. The complainant was provided with access to listen to the tape recording of his 6:44 p.m. phone call, but while listening to the tape he became frustrated and left before satisfying himself as to its contents.

8. The respondent resists disclosure of the tape recordings of other persons' telephone bets on the grounds that the tape recordings are "privileged" pursuant to 1-18a(e)(3), G.S. and that its regulations, 12-571-8a, et seq, prohibit such disclosure.

9. Section 1-18a(e)(3), G.S. describes a proper purpose for an executive session, but is not a basis for exempting records from disclosure. Furthermore, 1-19(a), G.S. provides that any agency rule or regulation that conflicts with, diminishes or curtails the rights to access to public records granted by the Freedom of Information Act shall be void. The respondent failed to prove that tape recordings of telephone bets placed with the OTB system are otherwise exempted from disclosure by state statute or federal law.

10. The complainant, however, expressed no interest in an examination of the recordings of other bettors' telephone calls. Absent such interest, the Commission declines to order disclosure of the recordings of other bettors' telephone calls.

11. It is found that the complainant's goals will be met by a thorough examination, by him, of the tape recording of his 6:44 p.m. telephone call to OTB. Such an examination will either support his contention that during the conversation he asked to change his bet or will support the respondent's contention that the 6:44 p.m. telephone call was concluded without any such request by the complainant.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.

1. The respondent shall forthwith provide the complainant with an opportunity to listen to and satisfy himself as to the contents of all recordings of telephone calls placed by him on May 1, 1986 between 6:44 p.m. and 7:00 p.m.

Docket #FIC 86-154 Page Three

2. The respondent shall, within one week of the Notice of Final Decision in this matter, provide the complainant with an affidavit stating that it has examined the contents of all relevant tape recordings and that the complainant has been provided with access to listen to all recordings of telephone calls placed by him on March 1, 1986 between 6:44 p.m. and 7:00 p.m.

Approved by order of the Freedom of Information Commission at its special meeting of September 23, 1986.

ÿ

Karen J. Haggett

Clerk of the Commission